Campaign finance reform is dead and the Supreme Court killed it

How did we get here and is there a future?

WASHINGTON, D.C. - One of my favorite lines about politics came from the Senator Daniel Patrick Moynihan in 1984. He had crossed the Capitol and was talking to the House Ways and Means committee about closing tax loopholes. Going against the tax lobbyists, Moynihan quipped, was like “pitting your kidneys against a brewery.”

Well, if that’s true, then keeping money out of campaigns is like a dialysis patient pitting a lone, damaged kidney against the global beer industry. And indeed, that in a nutshell is the story of what we call “campaign finance reform.”

Watergate inspired a 40-year reform crusade to limit the influence of money in politics, primarily by limiting how much people and organizations could contribute to campaigns, parties and other assorted political committees. The crusaders’ kidneys are about to the fail; the brewers are fat and happy.

We may be at the end of what historians will see as a late 20th century reform movement in politics. Though it is hard to see the forest through the trees, I believe the story of modern campaign finance reform, the modern good government movement, is about over.  We’re waiting for a new volume.

I don’t think the reformers have come to grips with this.  Maybe the anti-reformers have, but I do not believe that they can look with great pride on the hygiene of the old body politic.

In any case, it’s time for a new story, a new political theory for the financing of American politics.

But first, the obituary:

Who Killed Reform?

One man’s reform is another man’s deformity.  

What one side sees as a generation-long effort to limit the power of corporations, unions and the rich in elections and government, the other side sees as a 40-year effort to constrict and censor political speech.  Both sides think the other is disingenuous, using points of principle to disguise partisan combat.

Regardless of where you happen to sit, the Supreme Court has relentlessly valued free speech over regulating campaign finance.  The court has essentially eliminated every limitation on political contributions and spending Congress has promulgated over the past 40 years. 

The most recent milestone came in April, when the Supreme Court ruled that aggregate limits on how much individuals are allowed to contribute to candidates and parties in an election cycle were unconstitutional.

Now, the only remaining limits on political donations are individual caps on the dollar amounts that can be contributed to any single candidate, party or PAC and a prohibition of direct contributions to candidates by corporations and unions.  Those laws are being challenged with lawsuits right now.

Justice Clarence Thomas has written several times that he thinks we should get rid of the remaining limits.  It is plausible and perhaps probable that he will get his wish. It is hard to see a philosophic or legal reason why the Roberts majority wouldn’t fully deregulate campaign finance; they may have pragmatic reasons but that is essentially unknowable to us mortals off the court.

The bottom line: “I think the Court is deregulating the campaign finance system.  Period.  End of sentence,” says Heather Gerken, who specializes in election law at the Yale School.

Even if the remaining few limits do stand for awhile, this era of campaign finance has run its course. If liberals gain a majority on the Supreme Court, it is conceivable the deregulation of campaign reform by the Rehnquist-Roberts courts could be reversed.  But that would take a generation’s worth of lawsuits and legislation.  

So, why has the reformist movement stalled? And are there new ideas or approaches?

Some stuff worked….

It is worth noting that the campaign finance reform crusades of the past 40 years were not total failures.

While it’s hard to make historical comparisons, blatant corruption like bribery or payoffs - what is referred to in the law as quid pro quo corruption – probably occurs at lower levels today than it did in the first 200 years of the Republic.  There is certainly no compelling evidence that there is more political crime these days – on the federal level.

And the post-Watergate disclosure laws do allow us to have a pretty clear and transparent view of the flow of special interest money into campaigns. Technology has helped the disclosure process. Fast computing, data science and the Internet allow much more illumination of the money flow than the microfilm and paper reports.  There are huge black holes – Super PACs and “issues” groups being the biggest and the blackest.

But all that is thin gruel.

The goals of reform

The phrase “campaign finance reform” has become such a rote refrain over the past 40 years that it is easy to lose sight of what the goals of reform were. And it is worth asking if those goals remain compelling or relevant.

This generation of law was intended to deal with a crisis of political legitimacy brought about by Watergate.  Many of the epic Nixonian misdeeds involved campaign funds. The actual burglary at the Watergate building was paid for by a “slush fund” from one of my favorite political organization ever – CREEP (the Committee to Re-elect the President).  Ambassadorships were essentially sold for large campaign contributions. Corporations were shaken down for direct donations.

Some – not all – of this was illegal under existing law.  But there was no enforcement. So in addition to new laws, Congress created the Federal Election Commission in the 1970s.

Almost all of the Watergate reforms backfired, had unintended consequences or were overturned by the courts.  The legal flow of money to candidates and parties escalated dramatically; the flow of money to  “independent” groups spent on elections exploded. 

An entire Political-Industrial Complex grew up to raise and spend a pot of money that grew to about $7 billion in the 2012 cycle.  An industry was born. It is called Political Consulting, populated by lawyers, fundraisers, pollsters, ad-makers, TV time buyers, data specialists, social media experts, campaign managers and the mythical strategists.  

Congress’ original intentions were captured in the recommendations the Senate Watergate Committee made after all its investigations:  “The basic purpose of a limit on contributions from any one source is to minimize the potential influence or appearance of impropriety which might result from large contributions.”

Polls show trust in government has steadily waned ever since. Confidence in Congress is particularly low. Indeed, it has hard to imagine how a profession could have less stature than being a member of Congress

So the goal of protecting the legitimacy and trustworthiness of the federal government has patently failed.

Justifying deregulation

Whatever you may think about the integrity of government and its perception, it has not been a relevant legal concern for the Rehnquist-Roberts majority on the court.  It isn’t so much that they think there is no problem; it’s that they think it is irrelevant legally.

Part of how the conservative majority has justified dismantling so much campaign finance law is by using this logic:

1. Campaign contributions and expenditures are protected free speech and can only be restricted for a supremely compelling reason.

2. The only compelling reason law and precedent recognize is the prevention of quid pro quo corruption – essentially bribes or direct pay-offs.

3. It is impossible to show that general regulation of campaign finance can prevent specific acts of quid pro quo corruption.

4. Therefore, campaign finance regulations are impermissible restrictions of free speech.

And a series of Supreme Court rulings have slowly but relentlessly deregulated.

Within this logic, it is irrelevant to argue that laws are needed to address a crisis of legitimacy in government, the widespread perception of corruption or evidence that certain interests have undue influence. None of that is relevant. Bribes are relevant. That’s it.

Justice Breyer argued over and over in his dissenting opinion in the most recent case, McCutcheon v. FEC, that this is a crimped, unrealistic and intellectually dishonest notion of corruption – and of how institutions garner and squander trust.

“In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality [the prevailing Roberts opinion] acknowledges,” Breyer wrote. “It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.”

So until there is an ideological shift on the court, you can argue about how trust in government is at historically low levels until the cows come home. Chief Justice Roberts and his majority don’t care.

Money = Speech

Similarly, you can kick and scream and howl in rage at the notion the campaign contributions are important acts of free speech.  The shorthand for that idea is that money (contributions) is speech.

The formulation first appeared in the case of Buckley v. Valeo in 1976. It has enraged and motivated reformers ever since. As Justice Stevens succinctly put it, “Money is property; it is not speech.”

It seems obvious that contributing to a candidate or a cause is precisely the kind of thing the First Amendment protects. Personally, I think campaign reformers over the years have been disingenuous about this.  Regulating political money is a quintessential free speech problem. It is a classic tragic dilemma; there is no good solution, no solution that doesn’t compromise ultimate values.

That said, it is not obvious that protecting political speech/money should be essentially unlimited and unregulated. We regulate lots of kinds of political speech/money. In most places, a permit is required for an assembly. There are often limits on the number of people allowed to gather. Parades must be approved.  There are regulations about how many union picketers can assemble in certain circumstances. There are laws against burning flags, money and draft cards. Indeed, why isn’t a direct payment for a vote a form of free speech?

But the big problem here is that it is offensive to many Americans that having more money equals more civic or political freedom. 

Now, it is also offensive to many Americans to see neo-Nazis parade. It is a measure of the strength of our commitment to the first amendment. But the analogy to political contributions is flawed. Everyone has the opportunity to march – or to speak; not everyone has the opportunity to donate millions to campaigns.

Americans are generally sanguine about the reality that more money does equal more physical and material freedom – freedom to purchase, to employ, to own. Still, there has been in the past century a constant effort to create more equal opportunities to enjoy and garner those freedoms through, for example, anti-discrimination laws and funding public education.

In the Rehnquist-Roberts world, the idea of equalizing political freedom has no standing. “Congress may not regulate contributions… or to restrict the political participation of some in order to enhance the relative influence of others,” Roberts wrote in McCutcheon.

The future, is there one?

A sizeable chunk of the citizenry mistrusts Congress and government and thinks that there is too much money in politics.  A slivery minority of elected officials is openly repulsed by a system where they have to spend a sizeable chunk of time raising money and they’d like a better way. And a sizeable chunk of Democrats believe that a pro-business Republican Party will always raise more money without strict regulation.

So for reasons noble and ignoble, the efforts to reform the campaign finance laws will not end soon.

So it’s interesting to ask if there is any new approach to try, any paradigm to shift, anything new under the sun.

1. Common Cause is the grand dame of good government groups and they are pushing a Constitutional amendment that would specifically allow states and the federal government to limit campaign contributions and spending.  Democratic Senator Tom Udall of New Mexico has introduced a resolution proposing such an amendment and he has 20 co-sponsors.

I think it is fair to say this is considered a wee bit of a long shot.

2. Total public financing of campaigns has long been the holy grail of reformers. In polls, the public likes the idea, but doesn’t love it. A Gallup poll in June 2013 found 50 percent of respondents would vote for government-funded federal elections and 44 percent would vote against. Interestingly, 79 percent of those polled support a law that would put a limit on what candidates could raise and spend.

That quest is doomed to remain Arthurian. It is impossible to realistically think that Congress would ever even entertainment the notion, much less pass it. If it did pass, the Supreme Court would strangle it without some kind of Constitutional amendment.

There are various forms of partial and full funding at the state level. So, yes, there could be a federal incentive that would match small contributions to Congressional candidates, for example. This used to exist for presidential campaigns. Hypothetically, it is possible; practically, it’s one step down from a pipe dream.

3.  One creative-slash-off-the-wall idea that has been floated is to tax campaign contributions and expenditures. I mention this purely for mischief.

4. My personal favorite option is simple: Figure out a way to shorten all federal campaigns.

No other democracy has campaigns remotely as long as America. Most countries get the job done in six weeks or so.  The official length of an American presidential election is ten months. The unofficial length is two-years. It is nuts.

Without any other reforms, this would make campaign less expensive, therefore reducing at least the opportunity for undue influence a little bit.  It might even give members of Congress more time to govern instead of campaign. And it would spare the American public untold hours of negative ads. That is why 61 per cent of those surveyed by Gallup last year approve of the idea of shortening presidential campaigns to five weeks.

I think this should spark a revolution. It might not work out that way, I know.

5.  The final option that I am familiar with is to simply chill out.

After the McCutcheon decision, Matthew Pinsker, a historian from Dickinson College wrote:

"Our system is literally built around the idea that allowing the greedy and the power-hungry to compete against each other is usually the surest way to contain their excesses.  That same profound insight might apply to a new post-McCutcheon era of campaign finance reform.  Yet until now, the premise of modern reform has been exactly the opposite of the vices/virtues formula –a truly Sisyphean effort to close loopholes, impose tougher disclosure obligations and establish ever more finely targeted limits."

Under some theories of democratic pluralism, the interests of the filthy rich will cannibalize the needs of the obscenely wealthy and somehow the sum of all the vectors will be fair. Or not. In other the case, from this perspective the right thing to do is fight for your cause.

If you can’t get comfortable with that, though, you better have strong kidneys.

Dick Meyer is Chief Washington Correspondent for Scripps News. An experienced writer, reporter and author, Meyer was executive producer for the BBC's news services in America, NPR's executive editor and editorial director of Meyer also wrote a book on American culture and politics,  "Why We Hate Us: American Discontent in the New Millennium"  (Crown Publishing/Random House, August 2008).

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